Is the Definition of Personal Data Flawed? Hyperlink as Personal Data (Processing)
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| Year of publication | 2017 |
| Type | Chapter of a book |
| MU Faculty or unit | |
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| Description | The recent course of interpretation of the European directive on personal data 95/46/EC by the Court of Justice of the European Union, as well as opinions of Working Party 29, show that the Directive should be interpreted in the strictest way, so the right to privacy of the European citizens is not impaired. This opinion is proclaimed very strongly due to the underlying philosophy of the Directive, which is the prevention of possible harm. Very large application scope of the Directive is the cornerstone of this approach. It is ensured by very open definition of “personal data”, the key element of the whole personal data protection system. From the analytical point of view, the most interesting questions arise on the interpretational edges of the concept, where it might seem that it is illogical to apply the provisions. Strict application of the law might not be possible in such borderline situations because the data controller might be in a situation when it is in practice impossible to fulfil all legal duties. The hypothesis of the chapter is that current definitions of “personal data” and “personal data processing” are too broad. Therefore, sometimes it is impossible to fulfil the duties of the data controller, but data protection authorities do not enforce such cases. This approach is consequently undermining the whole system. In the first part the paper analyses European legal data protection regime, the legislative, judicatory and expert opinions on the possible scope of “personal data” as is defined in the European Directive 95/46/EC and General Data Protection Regulation. It also discusses concepts of subjective and objective approach to the personal data definition. In the second part, the chapter offers a case study of different situations in which a hyperlink might or might not serve as personal data in the meaning of the Directive. In the final part of the Chapter are offered two possible solutions to the presented problem. |
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